Unfortunately, there comes a time in some attorney-client relationships when breakup
is inevitable. You may have tried to “work things out” with your client, but things only got worse. So what do
you do?

You could try telling your client that “it’s not you, it’s me,” even if deep down you know that “it’s
not you, it’s your client.” The reality is that you have lost whatever spark there was at the beginning of the
case, and you and your client don’t see the case the same way anymore. Worst of all, you don’t share the same
goals. You feel your passion for the case slipping away. Oh – there is one other thing. There is that little problem
with money: You haven’t received any.

At the risk of sounding like Dr. Phil, it sounds like you need to “move on” and “let go.” But before
you do, grab Rule 1.16 of the Indiana Rules of Professional Conduct and make certain you are withdrawing from the case ethically.

Here are three things to know about withdrawing from a case:

1. There are times when you must terminate the attorney-client relationship

Whether you want to or not, and regardless of what Dr. Phil advises, there are situations when you must break up with your
client. These situations are outlined in Rule 1.16(a) of the Indiana Rules of Professional Conduct. These include times when
the “representation will result in a violation of the Rules of Professional Conduct or other law,” “the
lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client” or
“the lawyer is discharged.” For example, if your representation of the client will result in your assisting a
client in fraud, then under Rule 1.16(a)(1), you must withdraw from the case.

2. When withdrawing, do not make the client’s situation worse

Rule 1.16(b)(1) states that a lawyer may withdraw from representing a client if “withdrawal can be accomplished without
material adverse effect on the interest of the client.” What does that mean? That means you likely will not be able
to withdraw from a case that is set for trial in a week. Furthermore, it also means that under Rule 1.6, you shall not reveal
confidential information relating to the case.

If the reason for withdrawing is that your client has not paid you, state in your motion to withdraw that the “client
has not fulfilled his obligations to the undersigned.” Do not say, “The client lied to me about his willingness
to pay my fees and I am upside down to the tune of $30,000.” If the reason for withdrawing is that, pursuant to Rule
1.16(b)(4), the “client insists upon taking action that the lawyer considers repugnant or with which the lawyer has
a fundamental disagreement,” place in your motion something like “there has been a breakdown in the attorney-client
relationship.” It likely would have a materially adverse effect on the client to state something along the lines of,
“My client insists that I present a conspiracy theory to the court, accuse the judge of criminal activity and otherwise
impugn the impartiality of the tribunal.”

3. In formal litigation, the court has the final say on the breakup

Rule 1.16(c) states that “a lawyer must comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation.” That means that the attorney must check the court’s local rules prior to filing
the motion to withdraw. Some rules require advance written notice to clients and that notice can include advice regarding
the securing of new counsel, as well as notice of upcoming court dates.

Finally, Rule 1.16(c) states that “[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding
good cause for terminating the representation.” In other words, the breakup is not always the lawyer’s call. In
many cases, a judge must approve a lawyer’s termination of representation. Oftentimes, the longer a lawyer is in a case,
the less likely it is that a judge will allow the lawyer to withdraw. When the attorney-client relationship begins, look for
signs that “things weren’t meant to be.” If the case goes on too long, not only will breaking up be hard
to do, but it maybe impossible.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum
Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal
defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com.
The opinions expressed are those of the authors.

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